AUSBAKER INTERNATONAL PTY LTD (Migration)

This matter concerned an application by Ausbaker International Pty Ltd (the applicant) for approval of a nomination for a Subclass 457 visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for approval of the nomination, specifically in relation to the genuineness of the nominated position. The Tribunal had invited the applicant to provide updated and current information regarding various requirements, including details of the nominated position, its place within the organisational structure, and the business's financial circumstances.

The primary legal issue before the Tribunal was whether the nominated position for Corporate General Manager (ANZSCO 111211) was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved assessing whether the nominee was likely to perform the duties of the nominated position within the context of the business's operating environment. A further issue was whether the applicant had satisfied the Tribunal that all relevant criteria for nomination approval were met at the time of the Tribunal's decision, given the lack of response to the Tribunal's request for information.

The Tribunal reasoned that it could not be satisfied that the applicant met the requirements for approval of the nomination as a Standard Business Sponsor because the applicant failed to provide the requested updated and current information. The Tribunal noted that regulation 2.72(10)(f) requires the nominated position to be genuine, a principle affirmed in *Cargo First Pty Ltd v MIBP* [2016] FCA 30. The delegate had refused the nomination on the basis that the nominee was unlikely to perform the nominated position, thus the position was not considered genuine. As the applicant did not respond to the Tribunal's invitation for further information, including details about the nominated position's roles, duties, organisational placement, and the business's financial standing, the Tribunal was unable to make the necessary findings.

The Tribunal affirmed the decision not to approve the nomination.